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Medevac is about health not migration outcomes



'The thing about border protection is you've got to be consistent. You've got to be clear and you've got to hold the line. And the minute you show that you're prepared to crack it, well, that's when you start losing.' — Prime Minister Morrison, 2019

Yet again, the government is seeking to punish asylum seekers, with the proposed repeal of the Medevac law. The law was passed by the Senate on 6 December 2018. After the May 2019 election, the re-elected Coalition government sought to repeal the law and that bill is currently before the Senate.

Prime Minister Scott Morrison (right) sits next to Home Affairs minister Peter Dutton as they lose a vote during divisions for the Medevac Bill in the House of Representatives in February 2019. (Photo by Tracey Nearmy/Getty Images)A key issue is that the process is about access to health care, not about 'migration outcomes'. Once here, the person (called a transferee) is barred from applying for any visa at all. It is not an opening to Australian residence.

The Medevac law established a process whereby if a person being held at Nauru or Manus Island was referred for further medical treatment by two or more medical practitioners, and that treatment was not suitable or not available on Manus Island or Nauru, they could be transferred to the mainland for treatment. The Minister can refuse the transfer on three grounds, but must do so within 72 hours: 1. a reasonable belief the transfer is not medically necessary; 2. a reasonable suspicion the transfer would be prejudicial to security; 3. the person has a substantial criminal record.

If the Minister does not approve the transfer on health grounds, then the transfer would be considered by the Independent Health Advice Panel (IHAP). If the IHAP recommended the transfer, then it would go ahead unless the Minister vetoed it for security reasons.

Prior to the introduction of the law, the government had spent around $780,000 in legal costs defending the applications brought on to challenge the refusal of Immigration in transferring someone despite the recommendations and referral of doctors. Most cases were successful in the courts, so that meant the government had to pay the legal costs for the applicants as well.

Since the law was enacted, a number of people have been transferred and only one person was blocked by the Minister — a family member of a transferee. Despite this the government insists the borders are at risk. The Prime Minister stated the position of the government was not open to negotiation.

So regardless of the financial, personal and psychological costs to all those involved (asylum seekers, public servants, interpreters, lawyers, advocates and medical practitioners among others), regardless of the fact that the system was doing what it was intended to do, regardless of the fact that no evidence was produced to support the paranoia of the government when it comes to asylum seekers, the government decided it would abolish the Medevac process.


"There is no evidence to support the Prime Minister's view that the process is a crack in border protection."


The Senate Committee considered the bill and the Coalition majority on the committee recommended it be passed; this was opposed by dissenting reports from Labor and the Greens. Submissions to the committee stating the law should continue were not just from the usual suspects in Senate hearings on bills affecting asylum seekers. It included groups such as Royal College of Physicians, ANZ College of Anaesthetists, Australian College of Emergency Medicine, Royal Australian and NZ College of Psychiatrists, and a number of individual doctors. The law is also supported by the UNHCR, MSF, academics, religious organisations, non-government organisations and local community groups.

While the government's political drum beat is 'any change to border laws will lead to disaster', those who work with asylum seekers, the doctors and professionals who treat them, and local, national and international groups all urge the government to keep the Medevac law.

Not every case was recommended by the IHAP, in fact the Bills Digest report on the bill dated 25 September 2019 notes that of 23 cases referred to the IHAP, 13 refusals were affirmed and only ten were recommended for transfer by IHAP.

Senator Roberts of One nation helpfully referred to the medical transfers as an 'abomination' and said that the process provides 'a back doorway for queue jumpers to come onshore to Australia'. His wording is not reflected in the submissions of the medical experts. The ALP, Greens, and Centre Alliance oppose the bill. Senator Lambie is still to state her position.

For the doctors and the medical groups making submissions, the issue is a medical one. As the Royal Australasian College of Physicians notes: 'medical decision are often time critical, and should be made by medical professionals'. This argument is supported by legal bodies such as the Law Council as well as legal centres, Human Rights Watch, Amnesty International and the UNHCR .

One issue is about whether people are able to be returned to PNG or Nauru after medical treatment in Australia. This is not as clear as the government would like but, if needed, a simple amendment could fix that point, without abolishing the whole process.

There is no evidence to support the Prime Minister's view that the process is a crack in border protection. The government's position for asylum seekers by boat has always been absolute — no discussion, no negotiation. It is this very puritanical inflexibility that led to the serious medical problems for asylum seekers in the first place. The absolutist position of government either ignores the human consequences of harsh policies, or accepts the punitive harshness of the policies is a deliberate part of the deterrent.

In the last 25 years, there have been few positive law changes for refugees in Australia. I can think of only one positive reform (complementary protection in 2012) in around 45 legislative changes. The Medevac law was needed because there was no sensible process to arrange for urgent medical treatment for the people we are punishing as a deterrent. The current system is working according to the medical practitioners involved in it. It would be a tragedy for the people affected if the Medevac laws were repealed, just to prove how tough and immovable we are.



Kerry MurphyKerry Murphy is an immigration and refugee lawyer and part-time lecturer on immigration and refugee law at ACU.

Main image: Prime Minister Scott Morrison (right) sits next to Home Affairs minister Peter Dutton as they lose a vote during divisions for the Medevac Bill in the House of Representatives in February 2019. (Photo by Tracey Nearmy/Getty Images)

Topic tags: Kerry Murphy, asylum seekers, Medevac



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Existing comments

This is a difficult issue to be respectful on. The Coalition does not deserve our respect for trying to backtrack on the Medivac issue, when they disregard reports from medical and other experts and refuse to admit that their position is inhumane. The recent media report on the destruction of racehorses gained immediate public support for an investigation and a remedy/ies. Are animals more important than people in our society?

Henri | 24 October 2019  

Seeking to repeal the Medevac Law is so un-Christian its shocking. We have laws for dogs to be treated better.

Malthus Anderson | 24 October 2019  

I wouldn't hold my breath about there being genuine change on the horse front Henri - one has only to remember all the hullabloo about live export some years ago that went absolutely nowhere. And Malthus, the problem is not that on rare occasions we treat animals better than particular human beings, but that it is immoral to treat any sentient creature as means to an arbitrary end, rather than always as ends in and of themselves. Compassion transcends the species barrier, and is not a finite resource. We can be clever enough surely to attend to multiple issues.

THOMAS RYAN | 24 October 2019  

Thank you Kerry for once again shining the light in dark corners, and for clarifying matters. This government's policies leave many of us bewildered by their savagery, and their mishandling of the truth is shocking. People with a conscience must never, ever stop fighting for compassion and fairness. I admire the way you manage to keep calm and carry on in the face of such horror. A note to all - 'Against Our Oath' is a timely film, produced by Heather Kirkpatrick, that is just released and screening around Australia. Essential viewing.

Alison Corke | 24 October 2019  

Most doctors are very humane people who do not have to take any responsibility for border security. That is why since medivac laws came into effect in February, only 13 medical-transfer detainees — out of 135 brought to this country — have been hospitalised, and six people have been transferred to Australia under the controversial law despite security concerns. Since 2013 there has been 1117 medical transfers from Papua New Guinea and Nauru, with “only a handful” sent back. (Source: The Australian). It is the doctors' role to do all they can to provide for the welfare of others. It is the government's role to maintain border security and the safety of the nation. There will be tension between the two but it would be wrong, and unethical, to assert that either side is acting out of lack of humanity.

Ken John | 24 October 2019  

All too true. On the money again Kerry. Hope someone in Canberra is listening, especially Jackie, since her vote isn't just for Tasmania but will swing things for the whole of Australia if she isn't listening at all.

NOLA RANDALL | 24 October 2019  

Kerry, I completely agree with your essay. Sadly compassion is not a virtue this Government has demonstrated . I also agree with the current uproar about the killing of 'retired' race horses and the end of horse racing. It is NOT a sport! . Sadly like the greyhounds and live exports fiasco . vested interests , financial gain and revenue to Governments will win the day. Top marks again have to go to the investigative team at ABC TV. Well done guys ! No wonder the Government is cutting funds to the ABC. No commercial Channel would dare take this type of investigation on.

Gavin | 24 October 2019  

I’ve just seen a brilliant expose of the facts of our government’s persecution of sick asylum seekers and refugees: AGAINST our OATH , a factual and confronting history with chilling references to Nazi Germany . I hope Heather Kirkpatrick’s gutsy documentary stimulates all doctors and other caring professionals to give the political lead we need to reform and get the Human Rights Act we desperately need.

Frederika STEEN | 24 October 2019  

Seeing and taking in the facts presented in Against our Oath is a huge challenge and wake up call for all Australians. What we have done, and continue to do to innocent persecution fleeing men women and children must stop and be rectified. Ian McPhee, (opinion piece ) former Minister for Immigration in a Liberal Government, is not the only Australia ashamed to be Australian. Morrison /Dutton are a disgrace.

Frederika Steen | 25 October 2019  

This whole mess is an abomination created by Gillard by reopening the vicious prisons on Nauru and Manus only to wine and dine racists and Rudd's ridiculous NO WAY ad campaign a year later. Now we have the idiotic Keneally whining every day that 100,000 or so asylum seekers are more of a threat than the 8 or 9 million other people who come here every year. In the 5 years she keeps citing 95,000 records from estimates show that 35 million people come in and out of Australia every year, that is 175 million in 5 years who apparently don't count at all.

Marilyn | 25 October 2019  

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